State v. Graham, ___ N.C. App. ___, ___ S.E.2d ___ (Mar. 17, 2020)

aff'd on other grounds, ___ N.C. ___, 2021-NCSC-125 (Oct. 29, 2021)

The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13.

Immediately after sentencing, the state asked to proceed with an evidentiary hearing on subjecting defendant to satellite-based monitoring (SBM) after his release. Rather than conduct a hearing, the trial court took notice of the facts presented at trial, defendant’s prior conviction, and the nature of the underlying offense, and ordered defendant placed on lifetime SBM. On appeal, defendant argued it was error to enter that order without conduct a hearing; the state conceded it was error, and the Court of Appeals agreed. To support an SBM order, the state must prove at a hearing that the search imposed by monitoring is reasonable as applied to the defendant, under the totality of the circumstances, weighing the defendant’s privacy rights against the state’s legitimate interests. The trial court’s order was reversed and the matter was remanded to conduct the hearing.

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